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General and Specific Guarantees of Lawful Rule

I want to address Prof. Lawson’s hypothetical segregation case, because I think it helps address some of the originalism critiques I commented on earlier. Lawson asks whether my argument proves too much: under my theory, would a racial segregation law have been constitutional if it had been enacted before the Bill of Rights? My answer, as Prof. Lawson predicts, is no, precisely because I “pack[] [my] analysis of constitutionally legitimate federal action into the very concept of law.” This means that the “Fifth Amendment’s due process clause is essentially a truism—though no less important or significant for having that status.”

I suspect some readers will find this more troubling than Prof. Lawson does, for two reasons. First, it seems implausible. How could the concept of lawfulness, to which the founders cheerfully subscribed, have already prohibited practices that we regard as horrifying but which they took for granted? And second, doesn’t such a reading render much of the rest of the Constitution redundant?

As I write in my HJLPP article, I’m not so bothered by the second question. Yes, the Due Process of Law Clause is often redundant—it’s an extremely old provision, intended to prohibit arbitrary government action of all sorts; subsequent generations have added more specific prohibitions—for example, state constitutional clauses forbidding special legislation—which prohibit what can also be characterized as arbitrary action, but which later generations thought it would be better to specify as particularly bad. But while doing so, they have rightly seen no reason to eliminate the older, more general protection of the Due Process Clause.

Due Process of Law is therefore kind of a palimpsest or catch-all provision that often overlaps with other protections. This should not disturb us. Keep in mind that the framers of the Constitution thought the entire Bill of Rights was unnecessary and redundant, and expected federal courts to strike down lawless government acts even without any Due Process Clause! So even if my interpretation of the Due Process of Law restriction does make it echo other constitutional protections, that doesn’t work against my reading—as Michael Kent Curtis puts it, lawyers say everything twice.

But it still seems weird to suggest that the Due Process of Law Clause could have forbidden something like Prof. Lawson’s hypothetical segregation law—or that the very concept of law itself could have forbidden it even before the Due Process Clause was added to the Constitution, right?

Actually, no. This theory was well known even to the founding generation. English courts, as I observed earlier, had half a millennium of experience applying Magna Carta’s law of the land clause to forbid state actions on the grounds that, when considered by moral reason, they were inconsistent with the concept of lawfulness. Prof. Lawson’s hypothetical even sounds a bit like Somerset v. Stewart. If my approach is correct—focusing not on the meaning that some particular group ascribed to a word, but rather on a conceptual analysis of what that word objectively means—then it’s entirely possible for even the authors of a legal provision to be unaware of that provision’s full meaning, or of the consequences of the words to which they subscribe.

This, too, should not trouble us; it happens all the time. Statutory interpretation is often about whether a provision that applies in general terms to all Xes should also apply to Ys which are similar to Xes but aren’t quite Xes. The intention of the authors is probative, but not dispositive, in this inquiry, since it’s just a characteristic of human knowledge that we are always groping toward the future, not always knowing the full implications of the things we say and believe. We pass a law, for instance, that applies to all “motor vehicles,” not realizing that its wording could encompass airplanes, and thus—to twist Prof. Lawson’s hypothetical—that it would also applies to the Space Shuttle, even though the Space Shuttle had never been thought of at the time. Legal concepts—all concepts—are open-ended; they include all specific instances within the defined class. It should therefore come as no surprise that constitutional language can legitimately apply in ways that authors did not expect—as in the Kyllo and Jones cases I mentioned earlier. That’s just how language works. So, too, an argument that (say) slavery was already unconstitutional prior to ratification of the Thirteenth Amendment makes a lot more sense than many modern, historicist or positivist scholars are willing to acknowledge. Again to quote Justice Scalia, what we’re enforcing is not a specific 18th century law, but an open-ended, 18th century guarantee against arbitrary government action of all sorts.

Of course the generality of a text means there’s good reason to reiterate certain specifics. So although we could say—and courts have said—that the Due Process of Law Clause itself forbids uncompensated takings of property, or takings not for public use, it’s probably wise to reassert those requirements in separate, more specific clauses like the Takings Clause. It would be perverse if this attempt to provide double security were used as a basis for robbing the Due Process Clause of its force. Again, remember that the entire Bill of Rights was itself seen as a redundancy, added, in Jefferson’s words, as an additional “brace.”

But what about “this Constitution”? Prof. Lawson points out that only “this Constitution” is the supreme law of the land, which suggests that the document should be read as its authors read it at the time. I’ve made a similar argument before, about the proper role of stare decisis. But I don’t think that this provision works against my argument here—in fact, it strengthens it. I’m trying to address the meaning of this Constitution by asking what the words mean—as opposed to the subjective understandings of the authors of the language. It’s like trying to understand the meaning and internal logic of Heart of Darkness as a work of art, as opposed to seeing it as an artifact of the life of Joseph Conrad. By abstracting from the Constitution’s language to understand its principles and philosophy, we are truer to this Constitution than if we limit our inquiry to what the authors thought they were saying. We thereby focus on this “artificial perfection of reason,” instead of “any man’s natural reason.” We thereby focus on this Constitution, instead of any particular person’s Constitution. This—or so I’ve always thought—is the sort of objective approach that originalism promised us.

Also from This Issue

Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

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